City of Danville v. Lipford

120 Va. 280 | Va. | 1917

Kelly, J.,

delivered the opinion of the court.

This is a writ of error to a judgment in favor of J. D. Lip-ford against the city of Danville, in an action for damages for personal injuries.

Lipford, whom we shall hereinafter call the plaintiff, was employed as a laborer by the city in connection with the operation of its gas plant. His duty was to load tipple cars with coke in the basement of the gas plant, place them on an elevator, hoist them to the level of a tipple track, push them out on the tipple and dump their contents to the ground under the trestle. The trestle was some ten or twelve feet high. The track on the trestle was supported by ties laid about twenty inches apart. A walkway was provided betwen the rails by means of two thick planks nailed down lengthwise close together, filling up practically all of the space between the rails. Outside of the rails, on the projecting ends of the ties, planks about seven and a half inches wide were nailed down parallel to the rails, extending along the entire length of the trestle. The space between these planks and the outer edge of the rail varied somewhat, but at no point was it over five inches. The manager of the plant testified that the regular and usual distance was two and a half to three inches. These outside planks were placed there primarily as a walkway to enable employees to pass around the cars when they are dumped.

The plaintiff had been working for the city, in this same capacity, for seven or eight years. There were two branches or spurs to the trestle, however, and he had not been on the branch on which he was hurt for about six months prior to the night of the accident. At about three o’clock A. M_. he was attempting to dump a car, and his foot slipped into what is designated practically throughout the testimony as. “a hole” on the outside of the rail. The weight of the car threw him over, his foot was caught, and his leg was broken.

The case was tried upon an amended declaration to which there was no. demurrer. The first count, and the one to which the evidence seems to have been directed, may be epitomized as an allegation of the defendant’s breach of duty to furnish the plaintiff a reasonably safe place to work, in that the trestle was insufficiently lighted and contained the hole in question, which had been negligently permitted to remain there in a condition liable to result in an accident such as the one by which plaintiff was injured..

There are three assignments of error, the first being that the court erred in refusing to grant defendant a new trial on the ground that the verdict of the jury was contrary to the law and the evidence. We do not think this assignment is good. There is much in the evidence tending to show that the plaintiff’s injury was due to a mere accident, without fault on the part of the defendant, but there is also evidence sufficient to sustain the finding of the jury to the contrary, and we cannot interfere with that finding.

There is evidence clearly tending to show the following facts, in addition to those above recited: That all over the trestle, at different places, the timbers had from time to time given way leaving holes and defects requiring frequent repairs; that at the point where the plaintiff fell there was a “crack” or opening “on the outside of the rails” where the planks were rotten or decayed; that this hole or crack was the largest one there, being “about eight inches,” or an “eight inch hole in there;” and that the lights that morning were low and dim.

At the conclusion of the evidence the jury, by consent of both sides, were given a view of the premises. This, of course, could not add to the evidence, but it did place the jury in a position which enabled them to fully understand and comprehend the conditions at the time of the accident, the fact appearing that these conditions remained the same up to the time of the trial.

We do not overlook the contention of the defendant that plaintiff knew or ought to have known of the alleged defect. It is true that he was an old employee, and had worked for a long time on the trestle on which he was hurt; but he had not, as we have seen, been on it for nearly six months prior to the night on which he was hurt. He says: “I had not been on the old trestle since June 1st. (He was injured Nov. 24th). * * * we had used the new trestle up to that night. * * * I did not know the lumber was rotted out, because the trestle had been filled up (with coke dumped under it) ever since May. The lights were down low that morning. They got real dim. I don't know what was the matter with them, but they had just as good been out for that fog from the car.” The “fog” he speaks of was a steam or vapor from the coke caused by water turned on it at the loading point io cool it.

Enough of the evidence has been recited to show that, if the jury disregarded the opposing evidence of the defendant, as they might within their province have done, they were warranted in finding that the defendant was negligent as charged in the declaration, and that the plaintiff is net barred from'a recovery, either by contributory negligence or by assumption of the risk. In other words, upon a demurrer to the evidence, as we must view it, the case is with the plaintiff.

The next assignment of error is to the action of the court in giving and refusing instructions to the jury. The instructions given and those refused will appear in full in the official report of this case. We shall content ourselves, in the main, by saying, on this branch of the controversy, that the instructions deal with familiar principles, that those which the court gave fully and fairly submitted to the jury the theory of each party, and that this assignment of error is. without merit. The only instruction which we shall mention specifically is instruction “E,” asked for by the defendant and refused. It is as follows:

“The court instructs the jury that the unbending test of negligence is the general usage and practice of companies using like instrumentalities, and in order to establish negligence on the part of the defendant, plaintiff must show by a preponderance of the evidence that the trestle in question was dangerous and not up to the standard established by the ordinary usage of the business.”

The evidence upon which the defendant sought to avail itself of the “unbending test” to be found in the ordinary usage of the business was exceedingly meagre. If it had the right at all under the evidence to have the jury consider the practice of persons using trestles similar to the one in question here, that right was fully protected by. the portion of instruction “B” given for defendant which stated “that ordinary or reasonable care is such care as other reasonably prudent companies or persons use in conducting a like business.”

The remaining assignment of error is based upon the refusal of the court to exclude all evidence in relation to the ice which was shown to have formed on the surface of the trestle and on the outside plank at or near the alleged “hole.” There was no mention of this ice in the declaration, but the motion to exclude the evidence in regard to it was not made until after the plaintiff had been fully cross-examined about it, had rested his case, and. the defendant had examined the principal witness in its own behalf. Counsel then stated to the court that “in going over the declaration again” he had noticed that the ice was not mentioned, and he therefore moved the court to exclude the evidence in regard to it. The court replied that “it would hardly be proper to exclude that evidence entirely; it may go to the jury in order that the whole surrounding, circumstances may be considered; but the jury will be instructed, if requested, that if they believe that the ice on the track was the proximate cause of the injury, there could be no recovery in this case.” This statement by the court seems to have been made in the presence of the jury; and, in addition thereto, when all the evidence was in, the court did give the following written instruction:

“The court further instructs the jury if they believe from the evidence the plaintiff slipped on ice and this was the proximate cause of the injury they must find for the defendant.”

Under these circumstances, we are of opinion that there was no error in the action of the court in this regard.

The judgment is affirmed.

Affirmed.